Seventy-five days since taking office, President Joe Biden has yet to issue a promised executive order on the death penalty. And criminal justice reform advocates working closely with the administration are growing tired of the delay, according to three people familiar with the matter.
Two of these sources said they had each received assurances from transition officials that Biden would sign an executive order on capital punishment very quickly or “imminently” after he entered office. But in recent weeks, White House officials and close allies of the president have been quietly signaling to frustrated activists that a more forceful push on this type of reform will likely have to wait until some unspecified point after the new president’s first 100 days in office.
“It is complete bullshit that they’re dragging their feet on this,” one of the sources said. “We have been pushing them on this and barely getting anywhere.”
“And we’re still being told to wait and be patient,” the source said.
It isn’t exactly clear what executive orders Biden is eyeing on the death penalty. He could commute the sentences of all 49 people currently on federal death row into life sentences in prison. Or he could issue a moratorium on capital punishment until a certain time—such as after there’s been a review of the practice. Various activists close to the Biden administration have repeatedly called on the president to take swift action early on in his presidency and issue orders on both of these matters.
On the campaign trail in 2020, Biden said he was against the death penalty, despite earlier support in his career for capital punishment.
Like the nation, Biden has softened on the death penalty since the early 1990s, when he jokingly described the omnibus crime bill—eventually known as the “Biden Crime Bill”—as having so many death penalty provisions that jaywalkers might be the only criminals who wouldn’t fear the gallows. For many years, Biden has been so proud of his work on the legislation that, during the 2008 presidential primary, he claimed that then-GOP candidate Rudy Giuliani was only able to oversee a reduction of crime in New York City because the crime bill “allowed him to do that.”
That bill, signed into law in 1994, created five dozen new offenses for which the death penalty could be applied under federal law, including non-homicidal narcotics offenses.
“People forget, but in 1994 the number-one scream-and-cry was not ‘the economy stupid,’ it was crime—all over the nation, crime, crime, crime,” said Tom Scotto, who was president of the Drug Enforcement Administration in the 1990s and has also served as president of the National Association of Police Organizations, a coalition that lobbies on behalf of law enforcement. “And once we got started getting the new cops, a lot of community policing and so forth, we were able to bring crime down to where it is today. We smashed crime with all the additional bodies.”
Decades later, as racial inequities in law enforcement became a major issue in the 2020 presidential campaign, Biden would apologize for many provisions of that legislation and call for “long-overdue concrete changes” to laws on policing. Among those changes included a campaign promise to “pass legislation to eliminate the death penalty at the federal level,” and to incentivize states to do the same.
“People look at his record in the Senate around the crime bill as a constant, but it’s tied to a moment in time when Democrats were petrified of being Willie Horton-ed,” said one former staffer in Biden’s Senate office who worked on criminal justice issues. “But you have to look at the things he has done since the crime bill around justice: community reinvestment, criminal justice reform not just at a national level, but also working with local elected officials and state legislators… adapting his stance on capital punishment, to me, is part of that growth in understanding.”
But that growth in understanding has not yet materialized in action as president.
Asked whether Biden had any plans to take executive action regarding capital punishment for federal inmates—such as imposing a moratorium on federal executions, or using his presidential pardoning powers to grant clemency for those sentenced to be executed—or whether the timeline had been pushed back until a more politically convenient time, the White House did not respond to requests for comment.
Some White House officials feel that, given the divisiveness of capital punishment in comparison to the broad support for the president’s agenda on COVID-19 recovery and infrastructure investments, it may be a longer time coming.
“There’s no need to poke the Social Issues Giant earlier than absolutely necessary,” one source close to the White House said.